Nebraska's controversial abortion law faces uphill battle

Ban on procedures after 20 weeks asserts that fetuses feel pain

Published August 18, 2010 10:50PM (EDT)

One of two controversial abortion laws put on the books in Nebraska this spring was likely blocked for good on Wednesday, and the future of the other law is murky.

Attorney General Jon Bruning announced Wednesday that he'd agreed to a permanent federal injunction against enforcement of a law requiring health screenings for women seeking abortions. Citing an earlier ruling temporarily blocking the law from taking effect, his spokeswoman said Bruning believes that there's little chance the law would prevail in court against a lawsuit filed by Planned Parenthood of the Heartland.

"Losing this case would require Nebraska taxpayers to foot the bill for Planned Parenthood's legal fee," spokeswoman Shannon Kingery said. "We will not squander the state's resources on a case that has very little probability of winning."

But the state's leading anti-abortion group said it expects Bruning's office to throw its resources behind preserving the other law should it be challenged. That law -- the first of its kind in the U.S. -- would ban abortions starting at 20 weeks based on assertions from some doctors that fetuses feel pain at that stage of development.

"Any suggestion that Attorney General Bruning is shirking his responsibility to defend pro-life legislation is not shared by Nebraska Right to Life," executive director Julie Schmit-Albin said. If the ban is challenged in court, she said, "we are confident that the attorney general will vigorously defend any attack on that law."

The ban is scheduled take effect Oct. 15, but it also could face a legal fight. Dr. Leroy Carhart, whose clinic in Bellevue is among the few in the nation to offer late-term abortions, has taken on other abortion laws before the U.S. Supreme Court. And his backer, the New York-based Center for Reproductive Rights, hinted in an April letter to Gov. Dave Heineman that it would challenge Nebraska's ban.

"This bill is clearly unconstitutional and is the most extreme abortion law passed in this country in recent memory," the letter stated.

Center spokeswoman Dionne Scott said Wednesday that no decision had been made about a challenge. Calls to Carhart are directed to the center.

Lawyers on both side of the debate have said abortion rights groups may choose not to take on Nebraska's ban because of fears that losing could change the legal landscape for abortion nationwide. If opponents challenge the law and lose, the court could redefine the timeline for abortion restrictions, throwing out viability -- when a fetus could survive outside the womb -- in favor of the point when a fetus could feel pain, as it's defined by Nebraska's law.

The health screening law was challenged in a lawsuit filed last month by Planned Parenthood of the Heartland in U.S. District Court in Omaha. The group said the law could be difficult to comply with and could require doctors to give women irrelevant information.

Jill June, the group's president and CEO, said court documents were filed within minutes of Bruning's announcement on Wednesday to make the injunction permanent. A federal judge still must sign off on the agreement, though it wasn't immediately known when that would be.

"We have maintained from day one ... that this law was unconstitutional, and we are coming close to end of this legal battle," June said.

The law would require women wanting abortions to be screened by doctors or other health professionals to determine whether they had risk factors indicating they could have mental or physical problems after an abortion. If screening wasn't performed or was performed inadequately, a woman with mental or physical problems resulting from an abortion could file a civil lawsuit, according to the law. Doctors would not face criminal charges or lose their medical licenses.

The law was to take effect July 15, but U.S. District Judge Laurie Smith Camp had temporarily blocked it from taking effect. In that ruling, the judge said evidence presented so far showed that the screening law would make it harder for women to get an abortion in Nebraska by requiring screenings that could be impossible to perform under a literal reading of the law. She also said the law would put abortion providers at risk of crippling lawsuits.



U.S. District Court, Nebraska:

Nebraska attorney general:

Planned Parenthood of the Heartland:

By Timberly Ross

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